Support for H. Res. 279 Reversing the Insular Cases
SUMMARY
City Bar President Susan J. Kohlmann, along with the Puerto Rico Task Force, Rule of Law Task Force, Civil Rights Committee, and the Senior Lawyers Committee sent a letter to leadership at the U.S. House of Representatives urging a vote in favor of legislation which calls for rejection of the “territorial incorporation doctrine” found in the U.S. Supreme Court’s decisions in the so-called “Insular Cases” from the turn of the last century. The reasoning of the Insular cases continues to deprive the residents of U.S. territories – which include Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa – of basic rights of American citizenship and are anathema to democratic principles. “We call on Congress to correct the injustices perpetrated by the Insular cases against Americans who reside in Puerto Rico and the territories, and to address and reject the racial inequities they perpetuate. Congress should begin by passing legislation, which calls for reversal of the Insular cases and repudiation of the territorial incorporation doctrine that has supported a ‘separate but equal’ framework justifying unequal treatment of American citizens in the U.S. territories.”
REPORT
December 21, 2022
Hon. Nancy Pelosi
Speaker
U.S. House of Representatives
1236 Longworth House Office Building
Washington, DC 20515
Hon. Raul Grijalva
Chair, Natural Resources Committee
U.S. House of Representatives
1511 Longworth House Office Building
Washington, DC 20515
Re: Urging a Vote in Favor of H. Res 279 to Reverse the Insular Cases
Dear Speaker Pelosi and Representative Grijalva:
We write on behalf of the New York City Bar Association (City Bar)’s Puerto Rico Task Force, Rule of Law Task Force, Senior Lawyers Committee, and Civil Rights Committee to urge members of Congress to vote in favor of H. Res. 279, which calls for rejection of the “territorial incorporation doctrine” found in the U.S. Supreme Court’s decisions in the so-called “Insular Cases” from the turn of the last century.
First, we share with you a recent op-ed published in the New York Law Journal by the undersigned City Bar committees. The op-ed describes how the reasoning of the Insular cases continues to deprive the residents of U.S. territories – which include Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, and American Samoa – of basic rights of American citizenship and are anathema to democratic principles.[1]
As set forth in the op-ed:
Following the end of the Spanish American War, in 1898, the U.S. Supreme Court issued a series of opinions relating to the rights of residents of the territories annexed by the United States after the war. To what extent the U.S. Constitution applied to residents of these territories was debated in Congress, within the executive branch, and decided by the Court in cases referred to as the “Insular Cases.” The Insular Cases stand for the proposition that not all parts of the federal Constitution apply to the U.S. territories, and perpetuate undemocratic and unjust treatment. These cases sanction the imposition of different categories of U.S. citizenship on residents of the territories where the United States exercises sovereignty. They further permit discrimination on the basis of race and ethnicity. The decisions are outdated, abhorrent, and should be reversed. […]
For more than 100 years, the Northwest Ordinance of 1789 provided the path for U.S. territories in the northwestern part of the mainland to acquire entry into the U.S. as a State.[2] However, this path was denied to territories the United States annexed after the Spanish American War. These annexed territories include Puerto Rico and the U.S. Virgin Islands in the Caribbean Sea, Guam and the Northern Mariana Islands in the North Pacific Ocean, and American Samoa in the South Pacific Ocean.
Although in 1904 the Supreme Court held that the U.S. Constitution had independent force in the territories not contingent upon acts of legislative grace,[3] it also reasoned that “transforming the former Spanish colonies’ civil law system into an Anglo-American system would be practically impossible.” With this and other vague justifications, the Supreme Court developed the Territorial Incorporation Doctrine.[4] It states that the U.S. Constitution applies only in part in unincorporated territories.[5] Many provisions of the Bill of Rights also do not apply. It is not enough that the residents of these territories pledge allegiance to the American flag; people in the unincorporated territories would not be considered full U.S. citizens. Even after the conferral of citizenship to residents of most of these territories, they would not be entitled to equal protection or other rights generally understood to be the principal benefits of citizenship.[6]
The Insular cases perpetuate an injustice against Americans residing in the U.S. territories, including Puerto Rico. However, U.S. courts, including the Supreme Court, continue to rely upon the reasoning of the Insular cases[7] despite the fact that, in 1957, the Supreme Court stated that neither the Insular Cases nor their reasoning should be given any further expansion.[8]
These cases withhold the full protections of citizenship and constitutional rights from residents of Puerto Rico and the territories based on fictitious distinctions and racial animosity. These attitudes can be traced back to statements made by Congressmembers in the 1900s and, more recently, in statements made by Congressmember Jody Hice (R-GA) in response to Governor Pedro R. Pierluisi’s testimony before the Congressional Natural Resources Committee.[9]
In a hearing before the Natural Resources Committee on November 17, 2022, Governor Pierluisi testified regarding post-disaster reconstruction efforts and the state of the electric system in Puerto Rico. He described how Puerto Rico is recovering from the financial crisis, and the many natural disasters that have contributed to the decimation of the Island’s electrical infrastructure and economy. Most recently, in 2022, Hurricane Fiona brought over thirty inches of rain to some municipalities which, combined with historic rainfall during the months of September and October, caused major power outages and additional damage to the electric system, and required further emergency assistance from FEMA to stabilize the power grid. The governor asked that Congress provide financial assistance along the lines of what has been granted to mainland states in similar situations.[10]
In addition, Governor Pierluisi opined that unequal treatment of American citizens living in Puerto Rico over the course of 125 years has taken a toll. He stated that the people of Puerto Rico voted and chose permanent union with the United States through statehood as their path forward and that the continued lack of voting representation in Congress and voting rights is unacceptable. He stated that Congress should call for a vote on the political future of Puerto Rico and commit to implementing the will of the majority.[11]
In response, Congressman Hice stated: “every time we have a hearing here over Puerto Rico, one of two things happens and it just happened here again. And it is that they come here with their hands open asking for more money or asking for statehood. That’s all we cater to here.”[12]
Congressman Hice’s statements make plain that he regards the U.S. territories as standing on different – and lesser – footing than the states. He appears to fault the governor of Puerto Rico, whose residents are U.S. citizens, for seeking federal appropriations in the way that governors of the 50 states do and demonstrates his distaste and disregard for the residents of Puerto Rico by depicting them as outsiders looking for handouts rather than American citizens exercising their right to rely on the federal government.
In fact, there should be no distinction between citizens of the United States, and no difference in how a witness like Governor Pierluisi is treated versus a governor of one of the 50 states. To the extent that Congressman Hice is implying that there is something improper or unseemly about a political leader of Puerto Rico requesting federal assistance, it is worth noting that leaders of many of the territories that later became U.S. states advocated before Congress and the public regarding legal, political, human and civil rights prior to admission into the United States union. And with regard to Governor Pierluisi’s request that Congress act on Puerto Rico’s bid for statehood, this kind of advocacy is no different from what leaders of other territories that became U.S. states undoubtedly engaged in.
Congressmember Hice’s statements demonstrate, and reinforce, stereotypes and biases based on an illusory superior/inferior framework that began with the Insular cases and continues to undergird a divided America that treats citizens of U.S. territories differently from citizens of U.S. states. His statement was also dismissive of the natural and man-made travesties Americans in Puerto Rico have been facing.
Over one hundred years ago, the Supreme Court adopted the racist ideology expressed by, among others, members of Congress, in deciding the Insular cases.[13] And, unfortunately, we continue to see the effects of these opinions to this day.
We call on Congress to correct the injustices perpetrated by the Insular cases against Americans who reside in Puerto Rico and the territories, and to address and reject the racial inequities they perpetuate. Congress should begin by passing H. Res. 279, which calls for reversal of the Insular cases and repudiation of the territorial incorporation doctrine that has supported a “separate but equal” framework justifying unequal treatment of American citizens in the U.S. territories.
Respectfully,
Susan J. Kohlmann
President, New York City Bar Association
Wanda S. Day and Carlos Morales
Co-Chairs, Puerto Rico Task Force
Marcy Kahn
Chair, Rule of Law Task Force
Kevin Jason and Kathleen Rubenstein
Co-Chairs, Civil Rights Committee
Diane Fener and Gertrude Pfaffenbach
Co-Chairs, Senior Lawyers Committee
Cc:
Hon. Jim Clyburn, House Majority Whip
Hon. Steve Cohen, Chair, House Judiciary Committee Constitution, Civil Rights, and Civil Liberties Subcommittee
Hon. Steny Hoyer, House Majority Leader
Hon. Mike Johnson, Ranking Member, House Judiciary Committee Constitution, Civil Rights, and Civil Liberties Subcommittee
Hon. Jim Jordan, Ranking Member, House Judiciary Committee
Hon. Kevin McCarthy, House Minority Leader
Hon. Jerry Nadler, Chair, House Judiciary Committee
Cosponsors of H. Res. 279
Members of the House Congressional Hispanic Caucus
Footnotes
[1] Wanda Sanchez Day, Carlos Morales, Marcy Kahn, Kevin Jason and Kathleen Rubenstein, “Residents of U.S. Territories Deserve the Basic Rights of American Citizenship,” New York Law Journal, Oct. 24, 2022, https://www.law.com/newyorklawjournal/2022/10/24/residents-of-u-s-territories-deserve-the-basic-rights-of-american-citizenship/ (all websites last visited Dec. 21, 2022). A copy of the op-ed is appended to this letter.
[2] Under the Northwestern Ordinance, Congress had the power to initially appoint a governor and judges and establish civil rights. But, when the territorial population exceeded 5,000 adult males, voters would elect a legislature and send a non-voting delegate to Congress. When the territory or division thereof reached a population of 60,000, the territory could petition for statehood and eventually be admitted to the Union. In each act of admission since that of Tennessee in 1796, Congress has included in each state’s act of admission a clause providing that the state enters the Union “on an equal footing with the original States in all respects whatever.” Pollard v. Hagan, 44 U.S. 212, 221 (1845). The Northwest Ordinance provided the territories with a clear path towards statehood, and national citizenship was assumed to apply to the people in the territories.
[3] See e.g., Dorr v. United States, 195 U. S. 138 (1904).
[4] See Downes v. Bidwell, 184 U.S. 244 (1901); and Balzac v. Porto Rico, 258 U.S. 298 (1922).
[5] See e.g., Dorr, at 143; see also Juan R. Torruella, The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal (1985) (describing the racial animus underpinning the Insular Cases and the development of the incorporation doctrine following the Spanish American War); José A. Cabranes, Citizenship and the American Empire, 127 U. Pa. L. Rev. 391 (1978) (describing the debate within Congress regarding the conferral of citizenship to Puerto Rico without attaching all commensurate rights); Juan R. Torruella, The Insular Cases: The Establishment of a Regime of Political Apartheid, 29 U. Pa. J. Int’l L. 283 (2007) (describing the role of academic debates in producing the Insular Cases and that incorporation doctrine’s expansion in the early 20th century); Gustavo A. Gelpi, The Insular Cases: A Comparative Historical Study of Puerto Rico, Hawai‘i, and the Philippines, The Federal Lawyer (March/April 2011), https://www.fedbar.org/wp-content/uploads/2011/03/feature3-marapr2011-pdf-1.pdf (describing imperialist and racist sentiment expressed by members of U.S. Congress toward inhabitants of the newly acquired territories).
For example, in 1900, House Representative Thomas Spight of Mississippi commented that “the Filipinos, who “[are] Asiatics, Malays, negroes and of mixed blood, have nothing in common with us and centuries cannot assimilate them. … They can never be clothed with the rights of American citizenship nor their territory be admitted as a State of the American Union.” 233 Cong. Rec. 2105 (1900); see also Cong. Rec. 6019 (June 14, 1898).
[6] See U.S. v. Vaello Madero, 596 U.S. __, 2022. In Vaello-Madero, the U.S. Government sued Mr. Vaello-Madero to recover $28,081 it claimed he had illegally received in federal Supplemental Security Income because Congress had excluded Puerto Rico from this program. The plaintiff framed the question as a Constitutional Equal Protection issue.
[7] See id. Although the majority opinion did not cite the Insular cases directly, this is the most recent case in which the U.S. Supreme Court, citing the Territorial Doctrine, held that Congress has constitutional authority to treat U.S. territories differently from states. The Court rejected the argument that residents of Puerto Rico have a constitutional right under the equal protection doctrine to receive the same federal benefits – specifically, Supplemental Security Income (SSI) benefits – provided to Americans living in the 50 states. In so doing, the Court upheld the reasoning of the Insular cases, which established differential treatment vis-à-vis constitutional rights for Americans in the U.S. territories versus those in the states.
[8] See Reid v. Covert, 354 U.S. 1, 14 (1957).
[9] See Full Committee Hearing: Puerto Rico’s Post-Disaster Reconstruction & Power Grid Development, 117 Congress Cong., Nov. 17, 2022, Hon. Pedro Pierluisi, Governor of Puerto Rico, https://naturalresources.house.gov/hearings/puerto-ricos-post-disaster-reconstruction-and-power-grid-development1.
[10] Id. Specifically, Governor Pierluisi requested the following Congressional intervention: 1) 100% federal matching funds for energy-related FEMA-funded projects, which he states was done in other states where catastrophic damage occurred; 2) FEMA authorization to adjust fixed costs estimates of approved permanent projects given the recent increase in the cost of construction materials and supply chain disruptions, to ensure that projects have enough funding to be completed; and 3) an amendment to the Robert T. Stafford Disaster Relief and Emergency Assistance Act to authorize FEMA to consolidate the requested disaster relief into a single award under DR-4339-PR for the administration of federal assistance which would help lessen the administrative burden for both the Government of Puerto Rico and FEMA.
[11] Id.
[12] “Outgoing GOP congressman accuses governor of pestering,” San Juan Daily Star, Nov. 18, 2022, https://www.sanjuandailystar.com/post/outgoing-gop-congressman-accuses-governor-of-pestering.
[13] See note 5, supra.
